Swearing in reply

Chief Justice, Your Honours, Mr Attorney, Sister Solicitor – Una, a number here today heard yesterday there is US precedent for calling you the ‘Celestial General’; I commend its adoption to you – members of the bar, ladies and gentlemen:

I welcome here today, in particular, our – Una’s and my – mother, Anne, and our sister, Maki (we have two more sisters: Annamarie in Sydney; Fiona in Oman). And I also welcome Una’s partner, Jenny Keate; my very best friend, Belinda Ellis; and my goddaughter, Mia Gaudin-Grant.

I acknowledge at the bench, at the bar, and in the gallery, fellow denizens of Thorndon Chambers, my former partners and staff at Chapman Tripp, and an embarrassing number of my former juniors and clients. And, of course, many friends.

All of you who have joined me here today, I am grateful for and humbled by your presence. I also appreciate – Chief Justice, Mr Attorney, Mr Goddard, Mr Hodder – your kind exaggerations of me. Thank you.

I am proud to be part of our immigrant parents’ contribution to this country. In addition to their own work as doctor and nurse over some 50+ years in New Zealand’s health system, another two doctors, two lawyers, and two teachers seem a fair contribution. Especially as there are only five of us kids. Who include the GP mother of our fine nephews, Rusi and Dara; an award-winning novelist; a university dean; and of course our former acting spymaster. Thank you, Mum. In our little first generation NZers’ way, we do get around.

Our mother is Irish, which may explain my sisters’ lyricism. But I wanted to tell you instead about our father’s heritage. Our father, Rustom Jamshedji Jagose, was an Indian surgeon. Culturally, he was a Parsi, which meant he was part of a vanishingly small Bombay community, directly descended from refugees fleeing Muslim conquest of seventh century Persia. ‘Jamshed’ was his father’s given name. In keeping with Parsi tradition, each of our middle names is our father’s given name, ‘Rustom’.

As a Parsi, Dad was a Zoroastrian, informed by the religious teachings – not, as I once told my primary school class, of the Latin American revolutionary, Zorro – but of the ancient Persian prophet, Zoroaster. Zoroaster is thought to have lived in what is now eastern Iran about 1000 years before the Christian Era.

Unusually for a religion so long predating Christianity, Zoroastrianism is monotheistic. Its deity, Ahura Mazda (or ‘Wise Lord’), promotes the attractively simple morality of thinking good thoughts, speaking good words, and doing good deeds. In Zoroastrian tradition, life is a temporary state in which people are expected actively to participate in the continuing battle between truth and falsehood, between good and evil, between justice and injustice. Dad personified these expectations.

When you step inside the Great Hall at London’s Lincoln’s Inn, you will see at its far end G F Watts’ enormous 1850s fresco, titled ‘Justice: a Hemi-cycle of Lawgivers’. It depicts a semicircle of religious and political figures whose thinking formed law’s foundations. Lawyers dining at the Great Hall complete the circle. Confucius is there, and Justinian; so too are the authors of the Magna Carta, and Mohammed, and Moses. And off to the right, in a pool of light, dressed in white, and leaning against a golden pillar, is Zoroaster.

At the time of the fresco’s painting, Zoroaster must have seemed an aberrant inclusion. In familiar legal sentiment of the period (I’m thinking of Wi Parata’s “simple nullity”), the Bombay Supreme Court was told in 1839 “Parsis have no law… the question must be determined according to English law”. While Anglo-Indian law at the time accommodated Hindu and Islamic legal concepts, Parsis were too insignificant to warrant its adjustment also for their customary law.

Parsis were certainly insignificant in number. At the turn of last century, they were fewer than 50,000 in Bombay, about 5% of the city’s population. But they were then a very prosperous and influential part of Indian commercial society. They had done well under colonialism – benefiting from their cultural reputation for scrupulous personal dealings – to become trusted intermediaries between Indian and British traders before and during the colonial period, ultimately to invest heavily in India’s industrial development, from textiles to steel.

Lacking state support for their community, Parsis used their resulting wealth to build and maintain their own schools, hospitals, libraries, and other social and religious facilities, to rival those provided with state support for Hindu and Muslim communities. Parsis sought to enforce their own customary law on marriage and inheritance, including of business interests, and on access to their community assets, such as to fire temples for religious observation, and to Bombay’s Towers of Silence on Malabar Hill for deposit of the Parsi dead.

Inevitably, clashes arose. Not only were some Parsi legal norms at odds with colonial law, there also was significant internal dispute about what those norms were. There was no referable source of Zoroastrian principle. Most Zoroastrian scripture was destroyed when Alexander – Parsis abjure his suffix ‘the Great’ – when Alexander sacked the ancient Persian capital of Persepolis in 330 BCE. Subsequent Muslim routs completed the job. Zoroastrian tradition became largely oral over the next 2000 years, passed on by priests who inherited their station from their fathers, with all the personal interpolation that entailed in resolving community conflicts.

The most critical legal issue became “Who is a Parsi?”. Professed Zoroastrians not directly descended from the original Persian refugees sought access to desirable Parsi community assets. Lacking any accepted authority to determine their entitlements, and in desperation after at least decades of intra-cultural conflict, disputants took to the courts.

One of the seminal cases was Saklat v Bella. Bella was an Indian orphan, adopted by Parsis in Rangoon, the former capital city of Burma (now Myanmar). After some resistance from the Parsi community, her parents took advantage of a senior priest’s absence to have her initiated into the Zoroastrian religion. They later brought her to the fire temple, which is considered desecrated by the presence of ethnic outsiders. Outraged Parsis sought to exclude her. The ensuing litigation produced over 1,300 pages of case law, four derivative libel proceedings, and protest meetings and petitions involving thousands of Parsis. Every turn was breathlessly reported in the colonial press in Burma, India, and England.

The core proceeding eventually made its way over the following decades through the Bombay High Court, from which final appeal lay to the Privy Council in London (our own Supreme Court’s predecessor). Volume 42 of the Times Law Reports at page 25 records their Lordships’ decision on Bella’s case.

Lacking any juridical foundation for application of Parsi customary law on rights to exclusive worship, the law lords turned instead to English common law. Whatever the cultural grounds for or against Bella’s access to the fire temple, the Privy Council held its establishment had all the indicia of a trust. And Bella’s access turned on the settlor’s intentions. Which the Privy Council found excluded Bella as a beneficiary.

The decision was a watershed moment. Parsis realised centuries-old, deeply engrained religious and cultural disputes could be resolved by application of the common law.

Which they turned to with enthusiasm. At the turn of last century, despite constituting only 5% of Bombay’s population, Parsis were litigants in 20% of proceedings in the Bombay High Court. Parsis initiated as plaintiffs, or furthered as appellants, well over half those cases. Fully a quarter of them were between Parsis. Reflecting that industry, nearly 50% of solicitors practicing in the Bombay High Court were Parsi. As were more than 10% of its judges. And they established many new rules to maintain and govern Parsi culture, even now into the 21st century – according to the common law.

Looking back over that period for her doctoral dissertation and her subsequent book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014), North American legal historian Mitra Sharafi develops the theory Parsis – backed by Zoroastrians’ canonical pursuit of progress in truth, order, and justice – Parsis are perhaps the only culture in history to have become defined by their adherence to the rule of law.

So, I’ve told you all that, to tell you this: until I read Dr Sharafi’s book, I had not thought my own personal commitment to the rule of law might be genetic. Or this appointment to the Bench, which I approach with considerable trepidation, might be culturally predestined.

To paraphrase Lady Gaga, maybe I was born this way.

But I am in good company. Last night the UK Supreme Court released its judgment in Unison ([2017] UKSC 51), a case about rights of access to justice. It has additional resonance for me, because it is a judgment also about employment law and economics. So perhaps you’ll forgive me emphasising its central paragraphs:

… The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.… [Otherwise], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.

That is as elegant an exposition of my understanding as I could have hoped to express. My legal comprehension and career has been shaped and furthered by my family’s values, and by mentors variously at universities in New Zealand and England, over 20 years at Chapman Tripp, and most recently in Thorndon Chambers. I count among those mentors a number of current and former judges of this Court. I am both honoured and chastened to follow in their footsteps.
I hope I do them – and you, the profession and the wider community – proud. I hope…

I’m also hoping I can leave behind my anxious habit of fitful and sleepless nights before hearings – often in unfamiliar hotel bedrooms, after dubious takeaway meals. My anxiety extends to horrible dreams of the arguments to come. The worst was before a day on which we were to cross-examine a witness appearing by audio-visual link from Los Angeles.

We tested the US District Court’s AVL facility with reluctant co-operation from one of its officials, who bore passing resemblance to Aretha Franklin in the Blues Brothers movie. She was to be in the room for the witness’ evidence the next day, to testify to his freedom from any unheard or unseen interference or threat there.

In my dream that night, my great friend, Jack Hodder, cross-examining the witness, inadvertently said something the court official took as grievous personal insult. I tugged at Jack’s gown, to get him to apologise. And, in my dream, Jack rumbled out “I am terribly sorry. I meant no dis R E S P E C T”. I woke in a cold sweat. Jack’s actual cross-examination was fine.

I am also not sorry to leave behind, unless there’s something about judicial life I’ve not been told, decades of measuring out my life in six minute units.

T S Eliot’s Love Song of J Alfred Prufrock more sensibly measures out life “with coffee spoons”. Thank you for joining me in celebration here today. I adopt Prufrock’s opening lines as my closing ones now:

Let us go then, you and I,
When the evening is spread out against the sky
Like a patient etherized upon a table;
Let us go, through certain half-deserted streets,
The muttering retreats
Of restless nights in one-night cheap hotels
And sawdust restaurants with oyster-shells:
Streets that follow tedious argument
Of insidious intent
To lead you to an overwhelming question …
Oh, do not ask, “What is it?”
Let us go and make our visit.

Last, my former firm, Chapman Tripp, has generously invited us all back for refreshments after this ceremony. Level 17, 10 Customhouse Quay. “Let us go and make our visit.”